You believe that the Court of Justice had no choice other than to uphold the directive on adequate minimum wages?
In my view – and this is a political analysis rather than a legal one – the Court of Justice couldn’t follow the opinion of its Advocate General by holding that the EU had exceeded its powers. The EU imposed wage cuts and drastic collective bargaining reforms on countries afflicted by the 2008 financial crisis, ranging from Ireland to Romania. As we demonstrated in our book (*), which was published last year, these neoliberal attacks on social rights, wages and working conditions were actively encouraged by employers’ organisations, both at European level (Business Europe) and national level (Medef in France, Confindustria in Italy, etc.) and were even supported by the US Chamber of Commerce.
The pressure exerted in this way on European political leaders to intervene directly in national wage-setting mechanisms has in fact gradually transformed wage policy and collective bargaining into areas that come within the scope of EU competence.
So, if the EU could legitimately intervene to decentralise collective bargaining or cut wages, people then wonder why, conversely, it couldn’t adopt a directive designed to correct the excesses of the post-crisis years, and to ensure a higher rate of collective bargaining coverage and adequate minimum wages throughout Europe.
This argument must have carried weight at the Court of Justice. Many cases had been referred to it in connection with interventions by the Commission and the Council in the wage cuts imposed across Europe in the wake of the crisis. In all of its judgments, the Court upheld these austerity measures in the name of the Union’s smooth functioning. This body of case law probably put the judges in an awkward position when they came to examine the directive: in all likelihood, they didn’t want to expose themselves to trade-union or social criticism by ruling in a different way. Citizens would inevitably have asked the same question: how can wage cuts be judged to be legal, while an adequate minimum wage, for its part, is deemed illegal?
This case is a particularly interesting illustration of how lobbying by the employers in favour of wage cuts and decentralisation of collective bargaining has – paradoxically – paved the way for adoption of the minimum wage directive, and subsequently, thanks to an ironic reversal of the situation, created the necessary conditions for building stronger foundations for the defenders of a social Europe!
